Protecting customers who are somehow able to shop online but are unable to read. That seems to be the goal of a recent Ninth Circuit ruling in a trademark case filed against Amazon.  In a case between MTM and Amazon, the court ruled that Amazon is misleading consumers by providing search results that don’t explicitly state that the product you searched for is not carried. It’s like if I visited a sporting goods store and asked a clerk to see the Nike tennis shirts. If the store didn’t carry Nike shirts and the clerk simply pointed you to the tennis goods section, would the clerk’s actions reasonably mislead me into believing that every shirt in the tennis section is a Nike shirt?  Of course not.

The Amazon trademark case is essentially the scenario described above. Amazon doesn’t carry MTM watches. Customers that search for “MTM Special Ops” on Amazon.com are simply provided with a list of watches from from other brands. While the search results do not explicitly state that Amazon does not carry MTM watches, the search results do clearly state the brand names of the watches being sold.   Nevertheless, MTM argued that Amazon’s search results constituted trademark infringement.

Initially, a district court granted summary judgment to Amazon, holding that Amazon’s actions did not create a likelihood of confusion for customers. However, the Ninth Circuit Court of Appeals reversed and ordered the case to proceed to trial. The reversal is based up a trademark doctrine called “initial interest confusion.” The court’s opinion, summarized the doctrine as:

Initial interest confusion occurs not where a customer is confused about the source of a product at the time of purchase, but earlier in the shopping process, if “customer confusion… creates initial interest in a competitor’s product.” Even if that confusion is dispelled before an actual sale occurs, initial interest confusion still constitutes trademark infringement because it “impermissibly capitalizes on the goodwill associated with a mark and is therefore actionable trademark infringement.”

This whole doctrine is silly. This issue could cover a whole range of traditional sales methods, including product placement. Is a store not allowed to put Nike and Adidas shirts on the same rack? What about placing generic items on the shelves next to brand names?

The dissenting judge pointed out how curious the majority’s ruling is with respect to Amazon:

Because Amazon’s search results page clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products….The search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page. The search results page is unambiguous.

We’ll just have to wait see what a jury has to say about this whole thing.  We suspect a reasonable jury would tell MTM to take a hike.

Coming soon to a courtroom near you . . . handheld flamethrowers. With an Internet connection and just $899, you can arm yourself with your very own handheld flamethrower. A Michigan company has launched the XM42 Flamethrower, which it bills as “the world’s first commercially available handheld flamethrower.” This future darling of products liability plaintiffs’ attorneys was made possible by crowdfunding (a.k.a. other idiots on the Internet). The manufacturer raised more than $150,000 in one month to fund the production.

According to the company, “as of now, flamethrowers are a fun toy for responsible adults and are useful for practical purposes.” The practical purposes? The company claims that flamethrowers are handy for insect control, weed removal, and other reasons, too. So the product is a snow shovel, fly swatter, and bottle of round-up all in one fun package.

We could say whole bunch of things about this product, but watching this baby in action is only way to do it justice. Click here to see it in action.

Sirius XM has resolved a piece of major litigation in its fight over its right to play pre-1972 recordings. In so doing, Sirius XM has settled with independent and major record companies for the satellite radio company’s alleged broadcasting of songs made before 1972 without permission and without paying royalties. The satellite radio broadcaster will pay $210 million to plaintiffs ABKCO Music & Records, Capitol Records, Sony Music Entertainment, UMG Recordings, and Warner Music Group.

The dispute centers around the rights of artists and record labels to control the use of recordings made before 1972. What’s with 1972? Federal copyright law only protects sound recordings made after February 1972. Thus, rights and compensation for pre-1972 recordings is determined by certain state laws. Until recently, SiriusXM and many other radio stations paid nothing for the broadcast of these recordings.

The settlement provides a nationwide resolution for Sirius XM’s use of the plaintiffs’ pre-1972 recordings. Under the settlement agreement, SiriusXM will have license the covered songs through the end of 2017. After that, Sirius XM must negotiate with the record labels for use of the songs going forward.

The matter of pre-1972 copyright issues is not, however, completely resolved for SiriusXM.  It still faces an outstanding copyright lawsuit brought last year by the founders of the ‘60’s band, The Turtles.

We here at Abnormal Use have a question for you. Any chance that you would come across a company named CaseRails and inadvertently think you had found a company named CaseWebs or CaseSpace? Neither did we. However, one misguided lawyer who owns trademarks for the latter entities thinks you might. He recently sent a cease and desist letter to CaseRails demanding that they fork over their company name and Internet domain name.

CaseRails is a small startup that offers a document management system designed to automate the process for drafting, storing, and reusing legal documents.  Sanford Asman, a trademark lawyer, claims that the name CaseRails infringes on his trademarks for the terms “CaseWebs” and “CaseSpace.” CaseWebs is purportedly a litigation support software owned by Asman.  It’s not clear that the name CaseSpace is being actively used Asman.

Apparently, Asman believes he’s got a corner on the market for any legal software names starting with the generic word “case.” His cease and desist letter can be read here. In the letter, he claims: “I take very seriously any third party attempts to use ‘Case’ formative marks in connection with web-based legal applications.” Maybe he should give LegalZoom a call and offer to help them pursue all those companies using names starting with generic word “legal.”

Luckily for the guys at CaseRails, Asman is generously willing to work out a resolution if they’d be so kind as to hand over the rights to the name CaseRails and the domain name CaseRails.com. We can understand that the guys at CaseRails might not want to spend valuable resources in a battle over their name. However, that is almost certainly what Asman is banking on.  We hope they do fight the matter as this thing is just down right silly.

Get this: There is definitely a real class action lawsuit against JC Penney in federal court in California over purported “phantom discounts.”

The lawsuit accuses JC Penney of hiking retail prices on apparel and accessories to trick shoppers into believing they were receiving sizable discounts when the items were advertised as being on sale.  The long and short of it is that the when retailer would run a sale, they would allegedly markup the price of the item and then “discount” it back down to the same price it had been at for months. For example, the complaint alleges that for a sale they’d mark up a shirt that had been selling for $17.99 to $30 and then they’d sell it for 40 percent off . . . or $17.99. The class action lawsuit has been certified by the federal judge presiding over the case.

To be fair, JC Penney apparently tried to move to everyday low pricing in 2012.  Ironically,  executives billed the new pricing model as the end of “fake pricing.” Apparently the customers really wanted fake pricing because the everyday low pricing was a miserable failure and they quickly went back to a more traditional discounting model.  It does make you wonder, however, if any of these claims of phantom discounting claims occurred during the period that the retailer was switching between business models.

The Federal Trade Commission does actually have regulations governing this sort of thing.  16 C.F.R. 233.1 requires retailers to sell items at original prices for a “reasonable length of time” before discounting them.  Sort of makes you wonder how Jos. A. Bank continues its thing, but that’s a story for another day.

Six Flags Great Adventure, a New Jersey amusement park, wants to create a huge solar farm that will generate enough electricity to make the park energy independent.  A big business that is trying to operate on an entirely renewable energy source – that sounds like something environmentalist would be applauding, right?  Not so fast.  Several environmental groups recently filed a lawsuit to stop the project because it calls for the removal of trees on the site.

The lawsuit filed against the amusement park and the solar energy company, KDC Solar, is seeking an injunction to halt the project, which they claim will result in the clearing of 90 acres of environmentally sensitive forest land.  They argue that the solar farm project violates local ordinances for tree removal.  They further claim that the local planning board failed to follow required procedures for approving the project, including not studying alternatives to deforestation.

However, the environmental groups don’t want the project halted altogether.  They want Great Adventure to build the solar farm above its parking lot. Although Great Adventure has not commented on the lawsuit, it has previously issued public statements regarding the proposal to build the solar farm above its parking lot.  It apparently ruled out the idea because of concerns over customer safety and decreased parking area.  Increased costs of 20 to 50 percent also may have been a factor in the decision.

It should be interesting to see where this goes.  It will likely come down to whether the planning board took the right procedural actions and, if not, whether they want to cure the procedural deficiencies in order to allow the project to move forward.

As we reported on Monday, Amazon.com is apparently none too happy with a person or persons that runs handful of websites with names like “buyamazonreviews.com” that offer to give glowing reviews of sellers’  products on Amazon for a price.  We have a few more thoughts on this matter. On April 8th, Amazon filed a lawsuit against the websites’ owner or owners  in Washington state court. Amazon calls the of buying and selling of reviews an “unhealthy ecosystem” that is damaging its brand.

The complaint filed in King County Superior Court names an individual named Jay Gentile as the operator of buyazonreviews.com.  Amazon also asserted claims against a John Doe defendant since it does not know who is operating buyamazonreviews.com, bayreviews.net and buyreviewsnow.com. Amazon wants the court to shut the websites down for trademark infringement, unfair competition and violation of the Consumer Protection Act.  The complaint also seeks an injunction to stoping  the selling fake reviews and an order requiring the sites to identify each Amazon review created in exchange for payment.

Amazon expressly prohibits paid reviews and threatens to suspend sellers that buy fake reviews. According to the complaint:

[the] Defendants are misleading Amazon’s customers and tarnishing Amazon’s brand for their own profit and the profit of a handful of dishonest sellers and manufacturers…Amazon is bringing this action to protect its customers from this misconduct, by stopping Defendants and disrupting the marketplace in which they participate.”

Although there’s no way of knowing which products have reviews that may have been purchased form one of these website.  However, this review seems to be a very likely candidate as it appears to have been written by J. Peterman.

The craft beer community is a passionate one. Bell’s Brewery makes fantastic beer, and as you probably know, it is a popular name in the craft brew world. However, Bell’s has been garnering negative press lately for its perceived bullying of a smaller Asheville, North Carolina area brewery in a trademark dispute.

Since we here at Abnormal Use maintain offices in both of the Carolinas, we felt compelled to comment upon this matter.

At issue is a brewery named Innovation Brewing. So, where’s the dispute? The names Innovation Brewing and Bell’s Brewery are so dissimilar that no one could possibly confuse the two, right? Well, not according to Bell’s, which believes there is a risk of confusion between the companies in light of an unregistered slogan that Bell’s has used in some marketing materials: “Bottling innovation since 1985.”

Okay. Seriously, how drunk would a customer have to be before trying to buy a Bell’s IPA and accidently ordering an Innovation Brewing IPA?  “Out of this world” drunk, according to the co-founders of Innovation Brewing.  In a statement issued on Facebook, the co-founders stated: “We do not believe that any human on Earth would confuse Innovation Brewing with Bell’s Brewery, despite their slogans.”

As for that backlash from the passionate craft beer community? At least one bar in Asheville, North Carolina stopped serving Bell’s shortly after news of the legal dispute became public.  There’s also a petition started by craft beer enthusiasts called the “Secret Beer Group” asking Bell’s to drop the matter. The petition has over 5,000 supporters.  And just for good measure, there’s some gem posts on the beeradvocate.com message boards with comments such as: “I’m calling bully and [BS] on Bell’s. No one in their right mind would ever confuse this.” We’ll be keeping our eyes on this one . . . .

As we discussed on Monday, customers may be getting more than a cheap buzz from their inexpensive bottles of wine.  A class action lawsuit filed in California alleges that dozens of low-end California wines have dangerously high levels of arsenic in them.  Arsenic is a carcinogen that, in high doses, can lead to serious health problems.  The defendants include Sutter Homes and Trader Joes’s.

So what exactly are the plaintiff’s alleging in this case?  The complaint alleges that “just a glass or two of these arsenic contaminated wines a day over time could result in dangerous toxicity to the consumer.” Yet the plaintiffs do not assert any causes of action or allegations that anyone has suffered any actual injury from the drinking these “contaminated” wines.  Rather, the complaint asserts causes of action for violations California’s consumer protection laws, including unfair business practices, misleading and deceptive advertising, and the consumer legal remedies act. The suit seeks injunctive relief, civil penalties, disgorgement and damages, and certification of a class of California consumers who purchased the named wines since 2011.

A spokes person for the wine industry has issued a statement in response to the lawsuit and believes that the suit is meritless.  Wine Institute vice president Nancy Light told Wine Spectator, “[t]here are no [EPA] limits [on Arsenic] for other foods and beverages—including wine—because they’re not consumed at the same level as water and not deemed to be a risk. There is no research that shows that the amount of arsenic in wine poses any health risks to consumers.”

So is your cheap wine going to kill you? Seems unlikely. Do the Plaintiff’s have case related to misleading advertising and other unfair business practice? Maybe. A complete list of the wines at issue in this case can be found here

Smartflash is what some in the tech industry might call a patent troll. It licenses patents but doesn’t actually create products.  Last month, Smartflash obtained a $533 million dollar verdict in a patent case against computer giant Apple.  Now, the company has filed another suit against Apple over the same disputed patents that were at issue in the first case.

In the original lawsuit, Smartflash accused Apple of infringing upon a number of patents relating to the access and storage of data, digital rights management (DRM), and payment systems.  The company claimed that these patents were used in a number of devices, including the iPhone and iPad. As noted above, in February, a Texas jury award Smartflash a $533 million verdict against Apple for that alleged infringement.

Apparently, Smartflash is not satisfied with $533 million verdict.  The day after that obtaining verdict, it filed another suit against Apple over these same patents.  They claim that the iPhone 6 and several other Apple products that infringe on their patents were not covered by the first lawsuit because they came to market after the first suit was too far along.  Now they want to be further compensated.

While these cases are interesting, it may all be for naught. As Bloomberg has reported, Apple has already been successful in getting similar verdicts from this particular district overturned. We’ll see what happens.